When an employee leaves through ill health

Ill health dismissals: the legal position

Long-term absence through sickness, or the inability to attend work consistently because of chronic ill health, are among the most difficult problems for a small business, particularly when the employee holds a key position.

An employee whose illness has a substantial, long-term or adverse effect on their ability to undertake normal day-to-day activities is likely to be covered by the provisions of the Disability Discrimination Act 1995. From 5 December 2005, the definition of "disability" has been extended to include people with cancer, HIV and multiple sclerosis effectively from the point of diagnosis. The Act has also removed the requirement that mental illnesses must be "clinically well-recognised". Read about the Disability Discrimination Act 2005 on the Directgov website.

An employer must not discriminate against an employee who has a disability, or whose disability worsens. Since 1 October 2004, all employers have had a duty to make reasonable adjustments to premises and working practices if not doing so would put the employee at a substantial disadvantage. An employee who believes they may have been discriminated against on the grounds of their disability may instigate proceedings at an employment tribunal. 

The point may come where continued employment of an employee with an illness, which results in long-term or persistent short-term absences, is no longer feasible because there are no reasonable adjustments that can be made to allow the employee to continue working.

In this case it may be fair for you to dismiss the employee, even if they are disabled. Remember that employees who are ill should be treated very sensitively and you should take particular care to follow proper procedures. See our guides on dismissal and how to manage absence and sickness.

You should be aware that the statutory standard dismissal and disciplinary procedures apply to ill-health dismissals. Failure to follow the procedures is likely to lead to a finding of automatically unfair dismissal. Download the statutory disciplinary and grievances procedures from the Acas website (PDF).

Subjects covered in this guide

• Introduction
• Ill health dismissals: the legal position
• Alternatives to dismissal on grounds of ill health
• Final payments

 

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